Carter (a pseudonym) v Australian Air League Incorporated
[2024] VSC 95
•8 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2022 02407
BETWEEN:
| CARTER (A PSEUDONYM) | Plaintiff |
| v | |
| AUSTRALIAN AIR LEAGUE INCORPORATED & ANOR (according to the attached Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 March 2024 |
DATE OF JUDGMENT: | 8 March 2024 |
CASE MAY BE CITED AS: | Carter (a pseudonym) v Australian Air League Incorporated |
MEDIUM NEUTRAL CITATION: | [2024] VSC 95 |
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PRACTICE AND PROCEDURE — Subpoena to produce documents — Claim by plaintiff for psychiatric injury arising out of historical sexual abuse — Objection by plaintiff to subpoena issued to Medicare seeking his entire medical history — Whether the defendant has a legitimate forensic purpose in issuing the subpoena to assess the plaintiff’s claim for past and future medical expenses and economic loss — Whether subpoena constitutes a ‘fishing expedition’ — Quach v MLC Life Limited (No 5) [2020] FCA 1134 and Pi v State of New South Wales (No 4) [2015] NSWSC 1410 referred to — Plaintiff’s objection to subpoena dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Bailey of counsel | Angela Sdrinis Legal |
| For the First Defendant | Mr C Morshead of counsel | Colin Biggers & Paisley |
| For the Second Defendant | Mr C Hangay of counsel | CLT Lawyers |
HER HONOUR:
On 1 March 2024 I dismissed the plaintiff’s objection to a subpoena issued by the first defendant, Australian Air League Incorporated (‘AAL’) directed at Services Australia (‘Medicare’). My reasons follow.
The plaintiff brings this claim against AAL and the second defendant, Mr Peter Diwell, in respect of allegations of sexual abuse said to have been perpetrated by Mr Diwell between 1978 and 1980. At the time, the plaintiff (then aged between 11 and 13 years of age) was a member of the Carnegie squadron of AAL, and Mr Diwell was a squadron leader. Mr Diwell has since been convicted for sexual offences involving children, and a trial of charges relating to his alleged abuse of the plaintiff is pending. In his defence filed on 26 September 2022, Mr Diwell does not admit the allegations of abuse.
The plaintiff has sued the defendants for psychiatric injuries said to have been suffered by him as a consequence of the abuse. AAL is said to be both directly and vicariously liable for the alleged abuse.
The plaintiff claims damages for pain and suffering, past and future economic loss, and past and future medical expenses. The plaintiff is a qualified accountant who has held a number of management roles in the public and non-profit sector, and his claim for past and future economic loss is substantial. He relies upon a report prepared by a forensic accountant in October 2023, which, depending upon the assumptions and methodology used, calculates the plaintiff’s past and future economic loss as ranging between $664,732 and $1,042,475. As for medical expenses, while the plaintiff’s claim for past medical expenses is modest ($1,783.21 for prescription medication), the plaintiff’s claim for future medical expenses is less so. Based upon the plaintiff’s diagnosis of chronic post-traumatic stress disorder and bipolar affective disorder type II, and the recommendations of a psychiatrist, the plaintiff seeks damages of up to $29,614.15 for further professional treatment over the next three years, and a further $20,320 for medication and other expenses over the course of his lifetime.
There is a substantial amount of clinical records and other medical material in evidence. However, despite the volume of the material provided, there are gaps. In its written submissions, AAL identified the following gaps in the evidence:
(a)the identity of the psychologists the plaintiff has reported receiving treatment from in approximately 2008 and 2010;
(b)the identity of the psychologists and psychiatrists whom the plaintiff’s GP referred him for treatment with in approximately 2021 and 2022;
(c)any treatment, including referrals and/ or admissions, arising from the plaintiff’s admission to an unidentified hospital in 2020 following an anxiety attack;
(d)any treatment, including referrals and/ or admissions, arising from the plaintiff’s involvement with and referral to the Crisis and Assessment Treatment Team (CATT) in 2021/2022;
(e)any treatment, including referrals and/ or admissions, arising from the plaintiff’s proposed admission to the Albert Road Clinic in 2021/2022;
(f)the identity of the GP who the plaintiff reported attending for a number of years from his childhood onwards in Malvern East;
(g)the identity of any medical professionals who provided treatment for the plaintiff in relation to his back injury which led to surgery in 2020;
(h)the identity of any medical professionals who provided treatment for the plaintiff in relation to his hip injury which led to several surgeries, a WorkCover claim and a period of time off work in approximately 2021;
(i)any treatment, including referrals and/ or admissions, arising from the plaintiff’s admission to an unidentified hospital in early 2021 for an unidentified injury;
(j)the identity of the physiotherapist for whom the plaintiff received treatment from in at least 2021 for an unspecified physical injury or condition; and
(k)any other medical professionals who treated the plaintiff in relation to the impact of workplace stressors from approximately 2018 onwards. The present records reveal that since 2018, the plaintiff has had extended periods of time off from work and made a WorkCover claim in the context of experiencing symptoms of stress, depression and anxiety as a result of workplace bullying and mistreatment, leading to a diagnosis of an adjustment disorder by a presently unidentified psychiatrist.
It may well be that some of these evidentiary gaps will be addressed by a review of the documents produced upon subpoena by the Victorian WorkCover Authority (‘VWA’). An objection by the plaintiff to the subpoena directed at the VWA was withdrawn in the weeks leading up to the hearing of the objection. However, I accept that evidentiary gaps remain.
The subpoena directed at Medicare seeks the production of the following documents:
The following documents held by the Department in relation to [the plaintiff]:
a)Medicare Benefits Scheme Summary for the period 1 February 1984 to date;
b)Pharmaceutical Benefits Scheme Summary for the period 1 January 1991 to date;
c) Medicare History Statement;
d) any Notices of Past Benefit; and
e) any Notices of Charge;
Given that Medicare was introduced in February 1984, the subpoena directed at Medicare seeks, in effect, the plaintiff’s entire medical history from that time.
The dispute between the parties is whether AAL has a legitimate forensic purpose in issuing the subpoena directed at Medicare seeking, in effect, the plaintiff’s entire medical history (‘Medicare records’). AAL says that the Medicare records will be relevant to both causation and quantum of loss. In relation to causation, details of the plaintiff’s medical history will shed light upon the question of whether the alleged abuse was the sole or primary cause of the plaintiff’s psychiatric injuries. The Medicare records will also assist AAL to evaluate the plaintiff’s claim for past and future medical expenses, and past and future economic loss.
In its written outline of submissions, AAL identified the following relevant principles, which I do not understand to be in dispute:
Where a subpoenaed party applies to set aside a subpoena, the issuing party must satisfy a two-part test. The issuing party must:
(a)identify precisely a legitimate forensic purpose for the categories of documents sought pursuant to the subpoena, bearing in mind that both the production of documents or the absence of produced documents may assist a forensic purpose; and
(b)demonstrate that it is “on the cards”, or that there is a “reasonable possibility”, that the documents will “materially assist” the issuing party’s case.
The principles which govern an application to set aside a subpoena were summarised by Derham AsJ in Walters v Perton as follows:
(a)the subpoena process under Order 42 should not be used as a substitute for discovery or non-party discovery;
(b)it is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(c)except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;
( d)however, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is "on the cards?” or that there is a “reasonable possibility” that the documents will materially assist the case of the party;
(e)the subpoena must sufficiently describe the documents to be produced so as to not require the recipient to make a judgment about the documents being sought and must not be oppressive or fishing. A “fishing expedition” is not a legitimate forensic purpose and will not be permitted;
(f)the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case. The test of relevance, however, may be a general one, particularly where the Court has only a general idea of the nature of the evidence which may be led as relevant to an issue or as to credit of an expected witness;
(g)a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough—the criteria set out in paragraph (c) must be satisfied; and
(h)where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.
In his written outline of submissions, the plaintiff referred to the summary of principles by J Forrest J in the Commissioner of Australian Federal Police v Magistrates’ Court of Victoria[1] (‘AFP’), and observed:
A mere suspicion that the subpoenaed documents will or may assist the subpoenaing party will not be enough to satisfy this test.
[1][2011] VSC 3 [28].
In its submissions, AAL referred to the relative paucity of authorities concerning objections to the production of Medicare records in personal injury proceedings. AAL submitted as follows (omitting footnotes):
In the decision Pi v NSW (No 4) the Supreme Court of New South Wales dismissed an application by the plaintiff to set aside a subpoena issued by a defendant to Medicare Australia. The relevant subpoena “in effect” sought the plaintiff’s entire file with Medicare Australia, including schedules of payments, medical history and the complete PBS file from 1 January 2006 to-date. The plaintiff objected on the basis that the material sought lacked relevance to the issues in the proceeding. In dismissing the objection by the plaintiff, the Court made the following observation when considering whether it is “on the cards” that the material sought under the subpoena will assist the issuing parties case:
‘In the context of medical records that statement needs to be understood against the background that the party issuing the subpoena will almost never know precisely what is contained within the records. Nevertheless, the starting position is that Mr Pi makes a claim that he suffered significant psychiatric injury requiring medication and that Medicare Australia can reasonably expect to have material that bears significantly on that question - namely, whether he does suffer from that injury, whether it was connected to the events surrounding his arrest, the extent of the injury, and his other medical needs as a consequence of that arrest. Of course, it may be that on an examination of the material it completely supports Mr Pi’s case. However, such hindsight knowledge does not deny the fact that in the circumstances of a claim of the kind that Mr Pi makes it is generally “on the cards” that within the Medicare material there will be documents that would or could materially assist the defendant’s case.’
The Court also observed that insofar as the Medicare files might contain information relating to unrelated physical injuries, as a practical matter a subpoena should not be drafted so as to require the recipient to undertake a detailed analysis of the records to determine relevance. Further, it was inherent in the nature of medical records that it could be difficult to disentangle physical and psychiatric injuries.
Similarly, in Quach v MLC Life Limited (No 5), the Federal Court dismissed an application by a plaintiff to set aside a subpoena directed to Medicare. The proceeding related to a claim by the plaintiff for compensatory damages arising from the defendant’s handling of his insurance policy in circumstances where he claimed he was unable to work as a result of an impairment. The Court held that records of the plaintiff's Medicare and PBS claims history from 1998-to date were relevant to the issues in the proceeding.
AAL sought to distinguish the current case from the decision of a judicial registrar of the County Court in Semi v VWA,[2] (‘Semi’) where a subpoena in substantially similar terms to the subpoena issued in this proceeding was set aside as amounting to a fishing expedition. AAL observed that, in Semi,[3] the plaintiff suffered an alleged injury between 2013 and 2015, and the subpoena sought documents from Medicare going back to 2001, well before the relevant period. In the current case, the alleged abuse happened between 1978 and 1980. AAL submitted that proceedings involving allegations of historical sexual abuse are of a qualitatively different character than proceedings involving workplace injuries or traffic accidents, where strict limitation periods means that investigations of a claimant’s past medical history would necessarily be limited to a more confined timeframe.
[2][2022] VCC 714.
[3]Ibid.
AAL concedes that obtaining the Medicare records is but the first of two steps in what it says is a legitimate forensic exercise. That is, it is ‘on the cards’ that the Medicare records will disclose the identity of the plaintiff’s treating medical practitioners who are not capable of being identified from the evidence currently available to AAL, including medical practitioners who have treated the plaintiff quite recently, and, on occasion, in acute circumstances. Further, AAL submitted that the Medicare records will of themselves disclose the duration and frequency of psychological and psychiatric treatment provided to the plaintiff to date, which in turn will affect the assessment of the plaintiff’s future treatment needs and hence the cost of that future treatment.
The plaintiff submitted that the scope of the subpoena is impermissibly broad, and that AAL is merely speculating that the Medicare records might assist its case. For example:
(a) the date range for the Medicare records is very broad, when most of AAL’s inquiries are directed at the period from 2008;
(b) the names of medical practitioners who have treated the plaintiff but are not known to AAL will not materially assist AAL’s case. At most, disclosure of those names may open up the possibility of further subpoenas being issued;
(c) in seeking documents to address what it says is the lack of evidence regarding certain events, AAL is clearly engaged in a fishing expedition;
(d) the treatment obtained by the plaintiff for various physical injuries bears no relevance whatsoever to the question of whether the plaintiff’s psychiatric injury was caused by the alleged abuse; and
(e) AAL has ample medical evidence available to it through medico-legal reports filed in the proceeding, clinical records discovered by the plaintiff, and the documents produced upon subpoena by the VWA.
Counsel for the plaintiff also highlighted concerns about the impact of the possible issue of future subpoenas upon the pending trial date, being 16 April 2024, and observed that the subpoena was issued after the date provided for in the orders made on 18 January 2023.
The plaintiff submitted as follows:
The schedule of documents sought under the subpoena is too broad in scope, given the time period that it spans. Further, in itself, the schedule expresses uncertainty as to the existence of the identified documents.
Ultimately, however, the plaintiff's submission is that the material sought by the first defendant by way of the subpoena is either of no relevance at all (mere identities of practitioners is not in itself relevant), or of only speculative relevance, in that the first defendant is seeking names of treating practitioners who may — or, more likely, given the lengthy time period being inquired of, may not — have anything relevant to add to the proceeding.
The objection will be dismissed. While I accept that the subpoena is expressed in broad terms, I accept that there is evidence to suggest that the plaintiff was suffering from mental health problems since about the mid 1980s, such that the Medicare records may disclose treatment from that time. I also accept that a subpoena expressed in more targeted or confined terms may be difficult for Medicare to comply with, given that it will be far easier for Medicare to provide all of its records spanning a specified time period than it would be to provide records which distinguish between different medical practitioners and different types of treatment. Further, any case management concerns arising from the looming trial date can be addressed, at least in part, by requiring AAL to seek leave to issue any further subpoenas, and any privacy concerns can be addressed by limiting inspection of the Medicare records to the legal representatives of the parties.
Turning now to the question of whether the subpoena has a legitimate forensic purpose, I accept that questions of causation and quantum loom large in this proceeding, given that the plaintiff claims that the alleged abuse has significantly affected his past and future career prospects and income earning capacity, and given that his future treatment needs are substantial. The plaintiff claims that, but for the psychiatric injuries suffered by him as a consequence of the abuse, he would have progressed to senior executive roles, including Chief Executive Officer roles. The potential forensic value of the Medicare records needs to be viewed in the context of the following instructions provided to the forensic accountant retained by the plaintiff:
Please assume that but for the abuse, our client would have pursued alternative career paths. Please prepare a scenario-based analysis for each of the following possible career outcomes;
a.[The plaintiff] would have otherwise attained his actual career progression to General Manager / Director roles. [The plaintiff] would have attained further career progression and attained further roles as an Executive Director.
b.[The plaintiff] would have otherwise attained his actual career progression to General Manager I Director roles. [The plaintiff] would have attained further career progression and attained further roles as a Chief Executive Officer.
Please assume that as a matter of reality, [the plaintiff] will continue to earn a salary roughly reflective of the average remuneration of the above scenarios and that [the plaintiff’s] employers would have continued to contribute superannuation at the minimum required rate.
I also accept that AAL has identified gaps in the evidence regarding the diagnosis and treatment of the plaintiff’s physical and psychiatric health problems which the Medicare records are likely to address. While I am a little sceptical as to the ultimate relevance of the plaintiff’s physical injuries and treatment of those injuries to the question of loss and damage, given that the plaintiff is a professional engaged in largely sedentary work, I accept that documents which may expose the weaknesses in a party’s case may be of just as much forensic value to that party as documents which demonstrate the strengths of their case.
I accept that those gaps will only be addressed in part by the Medicare records. The real issue for determination in the context of the current objection is whether a ‘legitimate forensic purpose’ may extend to seeking documents such as the Medicare records, which may not of themselves be probative evidence with respect to any fact in issue in the proceeding, but will guide further inquiries (including inquiries which may be pursued through the issue of further subpoenas) which are themselves likely to result in the production of probative evidence.
I consider that, in the circumstances of this case, there is a legitimate forensic purpose in issuing a subpoena directed at obtaining access to the Medicare records, which will in turn assist AAL to identify further documents which, if obtained, will either support or undermine the plaintiff’s case. It is apparent from the authorities that it is the legitimate forensic purpose of obtaining access to the documents to be produced upon subpoena which is important, not necessarily the contents and admissibility of the documents themselves (see, for example, AFP).[4] While I accept that AAL does not, and cannot know, exactly what information the Medicare records will disclose, AAL (and the Court) can be satisfied that the Medicare records will provide a comprehensive and reliable record of the plaintiff’s medical history and treating medical practitioners. Given the nature of the issues in the proceeding, and the gaps in the evidence available to AAL, AAL has established a legitimate forensic purpose for the subpoena.
[4][2011] VSC 3 [28(a)].
Further, while I acknowledge that the question of whether a subpoena issued for the purpose of, in effect, setting in motion a chain of inquiry does not appear to have been the subject of a great deal of consideration and analysis in the authorities, I do take some comfort from the decisions in Quach v MLC Life Limited (No 5)[5] and Pi v State of New South Wales(No 4)[6] that such an exercise, at least insofar as it concerns Medicare records, has been accepted as amounting to a legitimate forensic purpose, given that, in most cases, Medicare records will generally be utilised to identify medical practitioners who might themselves be the subject of a subpoena.
[5][2020] FCA 1134 (Rares J.)
[6][2015] NSWSC 1410 (Beech-Jones J).
Finally, while I accept that the subpoena is cast in very broad terms, both as to the timeframe for which the records are sought, and the range of practitioners and treatments for which records are sought, the breadth of the subpoena has to be viewed in the context of the plaintiff’s allegations in this proceeding. Like many proceedings in this jurisdiction, the plaintiff’s claim involves allegations of historical sexual abuse going back many decades. The plaintiff’s claim, like many others, involves a claim that the consequences of the abuse were significant and lifechanging, with his claim for damages based upon a contention that the trajectory of his life and career has been fundamentally changed, for the worse, as a consequence of the alleged abuse. Claims of this nature necessarily open a plaintiff’s medical history up to some degree of scrutiny, albeit subject to the protection of confidential communications afforded by Division 2A, Part II of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).
Accordingly, the plaintiff’s objection to the subpoena issued by AAL and directed at Medicare will be dismissed.
SCHEDULE OF PARTIES
| S ECI 2022 02407 | |
| BETWEEN: | |
| CARTER (A PSEUDONYM) | Plaintiff |
| - v - | |
| AUSTRALIAN AIR LEAGUE INCORPORATED | First Defendant |
| PETER DIWELL | Second Defendant |
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